Search: Symposium on the Functional Approach to the Law of Occupation
13 Nov Examining the ICC Appeals Chamber Decision on Victim Participation in the Palestine Article 18(1) Appeal: Significance and Implications
...stage, particularly in relation to decisions not to open or continue investigations. Proceedings under Article 18 are precisely where such oversight could be most meaningful, yet the Majority’s approach effectively forecloses this role by treating participation as exceptional unless expressly stated, in stark contrast to the dissenting opinion which recognises the colour of human rights law in interpreting the statute. Viewed through Article 21(3), this narrow approach is difficult to sustain. The Appeals Chamber has repeatedly emphasised that human rights “underpin the Statute; every aspect of it,” and Trial Chambers...02 Jun Guest Post: Silences in the Bond Case
the novel constitutional approach proposed by Nicholas Rosenkranz, which reads the Necessary and Proper Clause as authorizing only legislation related to creation of treaties and not to their implementation. This approach relies on a strained textual reading of the Necessary and Proper Clause in connection with the Treaty Clause which, as best I can tell, had never been made before Professor Rosenkranz came up with it. In adopting this approach, Justice Scalia completely ignores key aspects of constitutional history. As Carlos Vazquez and Ed Swaine have pointed out, the Framers...
01 Apr Nature as a Rights-Holder? Procedural Rights and Gaps After the Inter-American Court’s Climate Advisory Opinion
subject of rights, national initiatives, such as the National Policy on Climate Change (PNMC), continue to follow a human-centered approach focused on mitigation and adaptation. Similarly, Argentina reinforces protection through the General Environmental Law (Law 25.675), which promotes intergenerational equity for the benefit of future people, and the country’s ratification of the Escazú Agreement, which remains centered on procedural rights, such as access to information and public participation, specifically for persons. Most OAS Member States continue to apply an anthropocentric constitutional framework centered on the right to a healthy environment...
02 Apr April 30th Deadline: States Should Start CAH Treaty Negotiations with this Modernized Apartheid Definition
[ Lisa Davis is a professor of law at CUNY Law School, and the ICC special adviser on Gender and Other Discriminatory Crimes. Kirby Anwar is Visiting Associate Professor of Law at the Human Rights and Gender Justice Clinic, CUNY School of Law. Wendy Isaack is Senior Legal Fellow at MADRE. Huma Saeed is Senior Transitional Justice Fellow at Human Rights and Gender Justice Clinic, CUNY School of Law and Afghanistan Advisor at MADRE.] As governments prepare submissions to the UN Secretary-General on the draft crimes against humanity (CAH) treaty,...
09 Oct Trump vs. International Law: The Trump Administration and International Criminal Justice
… by promoting a culture of accountability that can help increase stability and thus decrease the need for far more costly military interventions in the future. Remaining engaged with the Court is an example of what Harold Hongju Koh and others call a “smart power” approach: not to shut ourselves off to those with whom we disagree, but to engage and work for mutually beneficial improvements that advance U.S. interests, including our interest in justice and the rule of law. The Trump Administration would do well to heed this call....
28 Jul Drop in the Ocean? Rethinking Jurisdiction in Climate Litigation
the need to reconsider human rights jurisdiction. Could the jurisdictional barrier be overcome? To explore this, the jurisprudence of the Inter-American Court of Human Rights (“IACtHR”) is significant. The following section will clarify the notion of jurisdiction under international human rights and examine the IACtHR’s progressive approach. Jurisdiction in Human Rights Context and Inter-American Court’s Approach In international human rights law, jurisdiction denotes the scope of a state’s obligations toward individuals, and not merely its sovereign authority. Although primarily territorial under ECHR Article 1 (M.N. and Others v. Belgium para....
16 Aug The ICJ’s Judgment in Nicaragua v. Colombia: Back to the Basics
of the Draft Conclusions. Or perhaps the Court felt that the circumstances of the case required a more flexible approach than the methodology prescribed in the Draft Conclusions? At this point, it is important to briefly discuss the reaction of States to the Draft Conclusions and how it squares with the Court’s methodology. Several delegations in the discussions held in the Sixth Committee of the General Assembly reiterated the two-element approach to ascertaining customary international law. They called for a rigorous methodology to ascertain customary international law so that it...
17 Apr Symposium on Confronting Colonial Objects: Beyond Return, Towards Repair – Litigating Restitution of Entangled Objects along the Spectrum of Legalities and (Post)colonial Justice
[Sarah Imani, LL.M. (NYU), is a German qualified lawyer and legal advisor at the European Center for Constitutional and Human Rights (ECCH) in Berlin. She is responsible for its work on German and European colonial crimes, reparations and restitution as well as critical and decolonial perspectives on the law.] Addressing colonial injustices has not been conceived as a matter of the law for a long time, let alone as a matter of human rights. Rather two, actually complementary phenomena defined the field of reparations, restitution and reparative justice in the...
10 Feb ICC Jurisdiction Within & Beyond Darfur: Mapping the Limits of Resolution 1593
...express temporal limit on the Court’s jurisdiction, the plain language of Resolution 1593 controls and jurisdiction remains ongoing for crimes linked to the referred situation. It is critical to note, however, that the Chamber’s interpretative approach to temporal jurisdiction was adopted within the context of crimes allegedly committed between 2003 and 2004, i.e., crimes with close temporal proximity to, and predating, Resolution 1593. Considering that the crimes here postdate April 2023, this post reviews the interpretative approach undertaken by the Court across other triggering jurisdictional mechanisms, where the alleged crimes...